Town of Greene v. DEC

Lead Agency Dispute

New York State Department of Environmental Conservation
Commissioner's Determination of Lead Agency
under Article 8 of the
Environmental Conservation Law

PROJECT: Application by Alfred Gorick Co., Inc. to mine sand and gravel on a 43.8 acre site also known as the Airport Road Pit in the Town of Greene, Chenango County

DISPUTING AGENCIES: Town of Greene Planning Board and Region 7 Office, New York State Department of Environmental Conservation (DEC)

This decision to designate the Region 7 Office of DEC as lead agency for the conduct of the environmental review under the State Environmental Quality Review (SEQR) process is made pursuant to Article 8 of the Environmental Conservation Law and 6 NYCRR 617. This decision is based on my findings as discussed below that the impacts are predominantly regional in nature and that DEC has the broadest jurisdiction to review this application.

The proposed project is the application of Alfred Gorick to operate an unconsolidated sand and gravel mine on a 43.8 acre parcel on Airport Road in the Town of Greene in Chenango County.

The Region 7 Office of DEC has jurisdiction to consider a Mined Land Reclamation (MLRL) permit application pursuant to 6 NYCRR Parts 420-425 and Article 23 of the ECL.

The Town of Greene Planning Board has jurisdiction to consider a site plan approval application as limited by the statutory preemption contained in the MLRL.

Both DEC and the Town of Greene Planning Board identified a list of potential environmental concerns for the proposed mine, including:

• cultural/archaeological resources;
• Safety and compatibility issues associated with the adjacent privately-owned Greene Airport;
• development in an agricultural district;
• proximity to the Chenango River;
• development in a flood plain;
• dust, noise and traffic associated with the operation of the mine.

In resolving a lead agency dispute, I am guided by the three criteria listed in order of importance in paragraph 6 NYCRR 617.6(b)(5)(v). These are: (1) whether the anticipated impacts of the action being considered are primarily of statewide, regional or local significance (i.e., if such impacts are of primarily local significance, all other considerations being equal, the local agency involved will be lead agency); (2) which agency has the broadest governmental powers for investigation of potential impact(s) of the proposed action; and (3) which agency has the greatest capability for providing the most thorough environmental assessment of the proposed action.

In consideration of the first criterion, the potential impacts identified in relation to this proposed mining operation involve cultural/archaeological resources, airport safety and compatibility issues, development in an agricultural district, proximity of the proposed mine to the Chenango River, development in a flood plain, dust, noise and traffic. I find that the potential impacts are mainly regional in nature for the reasons discussed below.

Both agencies raised the issue of potential impacts to cultural/archaeological resources. The proposed mine is believed to be on, or in proximity to, the "Bates Site," a Native American burial ground which is a historically/archaeologically significant site investigated and documented in the 1950's. The New York State Office of Parks, Recreation and Historic Preservation has been consulted and has recommended a Stage I evaluation to specifically determine the presence or absence of archaeological remains at the proposed mine site at the present time. Letters and communications to DEC staff from archaeologists and Native Americans reflect a regional interest. Furthermore, the potential impact is statewide in nature, as the State Historic Preservation Act has recognized archaeological resources to be of statewide concern.

Airport safety and compatibility issues are unique to this proposed mining project. The Greene Airport is located directly adjacent to the proposed mine, and there are potential impacts to airport safety associated with the potential for dust obscuring the visibility on its runway. The only access for this mine is a road that crosses the runway of the airport creating an air traffic safety concern which must be addressed. The Federal Aviation Administration would appear to be an interested agency.

In addition to the safety issues associated with increased traffic across the airport runway, the proposed mine plans call for the construction of a berm along the boundary of the airport to attenuate noise and assist in dust control. The presence of a berm adjacent to the runway has raised safety concerns for aircraft that could stray from the runway due to cross winds. The safety and compatibility issues also relate to the visibility problems due to fugitive dust from the mine as mentioned above. While dust and noise are local considerations, the associated safety concerns for potentially affected aircraft from the presence of the berm have ramifications beyond the boundaries of the Town.

The proposed mine would be located in Agricultural District 23. Potential activity or development in an agricultural district is an issue that has historically been considered to be of regional concern in the resolution of lead agency disputes, as potential impacts may extend beyond the boundaries of the Town.

The Chenango River is adjacent to the project. Issues have been raised regarding potential impact to the water quality and aquatic resources of the Chenango River. The Chenango River is classified as a Class B water body and traverses many municipalities. Thus this, in conjunction with the issues discussed above, indicates regional concerns.

The potential activity in a flood plain is a local consideration. The local government is responsible for addressing flood plain development through its review and approval functions.

Fugitive dust, other than that impacting runway visibility, is a local concern.

Noise has been raised as a potential local impact.

Traffic, except with respect to the runway crossing, is a local issue affecting a town road.

In consideration of the above discussion of cultural/archaeological resources, airport safety and compatibility, development in an agricultural district and activity adjacent to the Chenango River, I find that the anticipated impacts for this project are primarily regional in nature. They potentially extend beyond the local community. Therefore, according to the criteria contained in 6 NYCRR Part 617.6 (b)(5)(v), the DEC Region 7 Office of DEC is favored as lead agency.

Also under the next criterion, the breadth of jurisdiction, DEC is favored as lead agency. The applicant must obtain site plan approval from the Town of Greene Planning Board. However, the MLRL preempts local regulation of mining and the Town's jurisdiction over the proposed project is limited to:

• ingress and egress to town roads;

• routing of mineral transport vehicles on town roads;

• setbacks for property boundaries and public thoroughfares and rights-of-way;

• man-made or natural barriers, designed to restrict access as needed and in regard to type, length, height and location;

• dust control;

• hours of operation;

• whether mining is prohibited at the site; and

• enforcement of reclamation requirements contained in the MLRL permit issued by the Department.

DEC has exclusive authority under the MLRL to regulate all aspects of the project related to mining and reclamation. The breadth of the DEC's jurisdiction under the MLRL is superior to the Town's site plan approval. In resolving other lead agency disputes for mining projects, it has been recognized that the MLRL supersedes all other state and local laws related to the regulation of mining..The MLRL provides specific guidance regarding local government involvement in DEC's review of mining applications. Local governments are limited to advise DEC in regard to setbacks, barriers, dust, hours of operation and zoning prohibitions. DEC must incorporate into the permit conditions those local recommendations that are found to be reasonable and/or must provide a written explanation to the local government if any or part of the recommendations are not incorporated

The third criterion focuses on which agency has the greatest capability for providing the most thorough environmental assessment. Both agencies either possess the ability to conduct a thorough environmental assessment or could obtain such ability through consultants.

I conclude, based on the potential regional impacts and DEC's broader jurisdiction under MLRL, that the Region 7 Office of DEC should be lead agency for the SEQR review of the proposed Gorick mine.

This decision in no way limits the jurisdiction of the Town of Greene. The applicant must apply for and obtain all of the necessary Town approvals prior to commencing the action. I encourage the Town of Greene to identify all of its environmental concerns so that the Region 7 Office can consider them in its determination of significance. The Region 7 Office should work closely with the Town of Greene in the conduct of the environmental review process.